Maamar Achar Maamar

Yevamot (5:1) | Yisrael Bankier | a year ago

On a biblical level a yavama becomes the wife of the yabam only
though yibum, and a yavama is only free to marry anyone else through
chalitza. We have discussed previously that the Chachamim instituted
that a maamar is required prior to yibum, much like kidushin
precedes nissuin. The maamar resembles kidushin in that it is
performed either with an object value or through a contract. The
Chachamim were also concerned and decreed that if the yabam gave the
yavama a get (divorce document) then it would have an effect.
Chalitza would still be required, but no further yibum can be
performed.

The fifth perek opens with a debate whether a maamar followed by a
maamar or a get after a get in the context of yibum is
effective. Rabban Gamliel argues that is not while the Chachamim
maintain that they are. The Bartenura, when presenting the position of
Rabban Gamliel explains that if there were two yevamot and one
yabam and he gave a get to both, according to Rabban Gamliel the
second get would not be significant such that he would be able to
marry the second yavama's relatives. Similarly, in a case where there
are two yevamot and one yabam and he performed a maamer to both,
or if there were two yabamim and one yevama and they both performed
a maamar, the second maamar is not effective and a get (to undo
that maamar) is not required.

The Rishonim1 however question why Rabban Gamliel maintains that a
maamar after a maamar is ineffective. In a case where there are two
yevamot, and yibum has been performed to one, the brothers are
indeed prohibited to marry the tzara (second yevama). However the
relationship is not punishable with caret; as would normally be the
case for one's brother's wife. Instead it would constitute a "regular"
negative prohibition (lav). According to the Chachamim, kidushin
with one that is prohibited by way of a lav is binding and they would
be married despite the violation. Consequently, if performing kidushin
to the tzara after yibum is effective, then in our case we should
treat the maamar as kidushin and it should be binding even after the
(first) maamar. Why then does Rabban Gamliel maintain that there is
no maamar after a maamar?

One answer is that Rabban Gamliel's ruling in the Mishnah is
according to the position of R' Akiva who maintains that kidushin is
not binding in a relationship that is prohibited by way of a lav.
Consequently, in the above case, kidushin to the tzara would not be
binding and does not present a difficulty for Rabban Gamliel. Why does
the Gemara not comment that Rabban Gamliel rules like R' Akiva?
One answers is that the Chachamim argue with this position in the
Mishnah. The Gemara only comments that the Mishnah is to be
interpreted according to one opinion when the position in the Mishnah
is not argued against. Alternatively, it is because Rabban Gamliel
does not maintain the position of R' Akiva in general.

The Ritva and Tosfot find this answer difficult. Instead they
maintain that the position of Rabban Gamliel can be understood to be
consistent with the opinion of the Chachamim that maintain that
kidushin is binding despite an issur lav. They explain that
kidushin is only binding when we consider kidushin that is biblical
in nature. In the other case, after yibum is performed to one of the
yevamot, there is no longer a zika (obligation to perform yibum or
chalitza). Consequently, the act of kidushin to the tzara is
biblical. In our case however, after the first maamar there is still a
zika. Consequently, even though the act at that point may resemble
kidushin, it at best can only be considered a maamar which has
rabbinic force. According to Rabban Gamliel however, the Chachamim
only instituted one maamar. Therefore, any additional maamar
according to Rabban Gamiel is meaningless.

1 This question along with both answers are found in the Tosfot,
Ramban, Rashba and Ritva.